Employment Law Update | September 2019

Welcome to the latest edition of our monthly employment law update. We keep track of the latest employment law changes so you don't have to!

• • When should personal data be supplied following a data subject access request?
  • Is a contract of employment unenforceable if the employee doesn't have leave to remain in the UK?
  • What might a Labour government mean for workers' rights?
  • Will the retirement age rise to 75?
  • Have there been any developments in respect of non-disclosure agreements?

If you wouldlike to discussany of the issues raised below, please don't hesitate to contactLiz Henry orJames Austin

When should personal data be supplied following a data subject access request?

Employers are required to provide this information within one month of receiving a request, unless the complexity and/or number of requests allow them to extend that period by two months. This has been the case since the new data protection regime came into force. However, what wasn't clear is when that time starts to run from. In Maatschap Toeters and M.C. Verberk v Productschap Vee en Vlees it was held that the day of receipt is the first day. This will mean that some of you need to amend your policies as they will refer to the clock starting on the day after receipt.

Contact us if you need any help amending your policy.

Is a contract of employment unenforceable if the employee doesn't have leave to remain in the UK?

Quite often the answer to this will be "yes". The result will be that the employee cannot successfully claim unfair dismissal or bring claims for notice pay. However, as usual, each case is decided on its own facts and in Okedina v Chikale, the Court of Appeal found that as Ms Chikale did not know that she no longer had leave to remain in the UK (because her employer had misled her about this), her contract was not illegal and she had the right to bring employment claims.

It's also worth noting that even if a contract is illegal it won't necessarily prevent an employee from bringing successful discrimination claims

What might a Labour government mean for workers' rights?

The Labour Party has announced that if it forms the next government it would create a Ministry for Employment Rights and a Workers' Protection Agency to enforce rights. Proposals for employment rights include:

- Replacing the definitions of worker and employee etc with one status of "worker" to be applied to everyone except the genuinely self-employed
- Giving all workers the right to apply for flexible working
- Creating a statutory living wage of £10 per hour for all workers over 16 years old
- Effectively banning zero hours contracts
- Banning unpaid internships
- "Support for good employers through tougher penalties for bad employers who undercut them by breaking the law and tougher consequences for non-compliance with court orders"

Will the retirement age rise to 75?

This has been proposed by the Centre for Social Justice who suggest it may improve mental and physical health, increase retirement savings and improve the efficiency of public services. None of these were amongst my initial reaction. The current Work and Pensions Secretary has stated that there was "no prospect" of this happening and that it is "not government policy". Phew.

Have there been any developments in respect of non-disclosure agreements?

The Law Society has published a new guidance leaflet called "Non-disclosure agreements: what you need to know as a worker". The guidance suggests that workers should seek legal advice if they are signing any kind of non-disclosure agreement. It also suggests that workers ensure the agreement makes clear:

• who they can talk to (including family members and medical professionals)
• if there are any time limits on the confidentiality
• how they can talk about that role in future job interviews.

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